1976 P Cr (PLP)

MUHAMMAD SIDDIQUE, J. ‑‑According to the prosecution, the brief facts of the case are that during the night between 10th and 11th September, 1973, Khan Zaman, his son Ayub Khan (P. W. 10), his daughters Mst. Zainab Bibi (P. W. 11) and Mst. Nekbakht Bibi deceased were sleeping in front of their residential house. After midnight, the deceased felt that somebody was pressing the thumb of her foot She woke up and saw Rangin Khan appel lant armed with a gun and his brother Zarmir Khan appellant standing there. Rangin Khan appellant is alleged to have asked her to accompany him, but she refused. He caught her by the arms. She raised alarm which awakened her father Khan Zaman, her brother Ayub Khan and Mst. Zainab Bibi P. Ws. She released herself from Rangin Khan appellant and tried to run towards the kotha when she was fired at by Rangin Khan appellant. On receiving the shot, she fell on the ground. Both the appellants then ran away. The occurrence was witnessed by Khan Zaman, Ayub Khan (P. W.) and Mst. Zainab Bibi (P. W.). Mst. Nekbakhat Bibi was taken to Police Post, Makarwal where her statement (Exh. P. 6) was recorded by A. S. I. Muhammad Rafiq P. W. at 6‑30 a m. On the basis of this statement formal F. I. R (Exh, P.C./1) was registered at Police Station, Kamar Mashani at 8‑30 a.m. On the same day A. S. I. Muhammad Rafiq prepared the injury statement (Exh. P. N.) of Mst. Nekbakht Bibi and referred her to Civil Hospital for medical exami nation. He himself reached the spot, collected the blood‑stained earth from the spot and sealed it into a parcel vide memo. Exh. P. A. He recovered one empty cartridge (Exh. P. 1) which was lying on the spot and was taken into possession and sealed into a parcel vide memo. Exh. P. B. He got prepared site plan (Exh. P. D.) from the Patwari. On 14‑9‑1973 both the appellants were produced before him on the spot by their relatives. He formally arrested them. On the same day Rangin Khan appellant led to the recovery of an unlicensed gun (Exh. P. 2) and two cartridges (Exh. P. 3/1‑2) from his residential kotha. The police officer took the gun and the cartridges into possession and sealed them into a parcel vide memo. Exh P. E. From the Police Post, Makarwal, Mst. Nekbakht Bibi way removed to Civil Hospital Isa Khel where she was medically examined by Mr. Inamul Haq Khan on 11‑9‑1973 at 12‑15 p.m. The doctor found the following injuries on her person :‑ (1) A gunshot wound on the right mandible (jaw) 1 " below the ear, i.e. " x 1/6" bone deep. (2) A gunshot wound on left side of the neck at the root of the ear i.e. 1 " above the left clavicle " x ". (3) A gunshot wound on the front of the left shoulder 3/4" x 1/2" bone deep. (4) A gunshot wound on the front and outer side of the right shoulder " x 1 " i.e. muscle deep and margins were irregular. (5) A gunshot wound on the inner side of the right upper arm " x " i.e. bone deep. (6) A gunshot wound 3/4" x 1/2" on the inner side of the right upper arm, i.e. muscle deep. (7) A gunshot wound " x " on the back of the right shoulder blade on the Inner side of the chest. (8) A gunshot wound " x " i.e. deep to the chest cavity. (9) A gunshot wound on the right side of the chest on the back " x " on the outer side of the axillary line and muscle deep. (10) A gunshot wound on the tip of the left shoulder muscle deep " x ". (11) A gunshot wound on the left shoulder 2" outside injury No. 10, i.e. " x " x muscle deep.

2. On the some day, at 1‑45 p.m. the said doctor also recorded her dying declaration (Exh. P. M.) which was also attested by the Naib Tehsil dar, Isakhel. She however, died on 12‑9‑1973 at 4‑00 p.m. The same doctor performed the post‑mortem examination on the dead body of Mst. Nekbakht Bibi and practically found the same injuries which he had earlier found dur ing her medical examination when she was alive. Death in the opinion of the Doctor occurred due to shock and internal haemorrhage. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. Time between injuries and death was within 36 hours and between death and post -mortem examination within 12 hours.

3. After the usual investigation, the police challaned the present appel lants under section 302/34, P. P. C. for the murder of Mst. Nekbakht Bibi. They were tried by the Sessions Judge, Mianwali, who vide the impugned judg ment dated 30‑1‑1975, convicted Rangin Khan appellant under section 302, P. P. C. for the murder of Mst. Nekbakht Bibi and sentenced him to death subject to confirmation by this Court. He was also ordered to pay Rs. 1,000.00 as compensation to the heirs of the deceased. He was further convicted under section 366 read with section 511, P. P. C. and sentenced to five years' rigorous imprisonment. Zarmir Khan appellant however, was convicted only under section 366 read with section 511, P. P. C. and sentenced to five years' rigorous imprisonment. Both the appellants have challenged their convictions and sentences through Criminal Appeal No. 132 of 1975. The case is also before us under section 374, Cr. P. C. for the confirmation of the sentence of death awarded to Rangin Khan appellant by the trial Court. Rangin Khan appellant was also convicted under section 13 of the Arms Ordinance, 1965, and sentenced to undergo rigorous imprisonment for two years. He has challenged this conviction and sentence through Criminal Appeal No. 133 of 1975. This judgment will dispose of the Murder Reference as well as both the Criminal Appeals.

4. Rargin Khan appellant when examined under section 342, Cr. P. C. denied tale prosecution allegations. He, however, admitted that Zarmir Khan appellant was his real brother. He further stated that he was already married and had children. His wife was alive and was living with him happily. When asked if he had anything else to say he stated as under:- "I am innocent. The deceased was a woman of loose character and she was injured in the house by her own kith and kin. I and my brother have been falsely charged." When asked if he would produce defence, he stated as under:‑ "I tender in evidence the Nikah entry Exh. D. E. of the deceased with her maternal cousin Hakam Khan, Nikah entry Exh. D. F. of the deceased's father with her mother, copy of mutation Exh. D. G., copy of criminal Register A Exh. D. H., copy of pedigree‑table (consisting of five leaves) Exh. D. J. and copy of F. I. R. No. 57 dated 15‑10‑1939 Exh. D. K. I do not want to lead any other evidence in defence." Zarmir Khan appellant also made a similar statement. S. In support of its case, the prosecution produced' two eye‑witnesses, namely, Ayub Khan (P. W. 10) and Mst. Zainab Bibi (P. W. 11). The pro secution further relied upon the dying declaration of the deceased (Exh. P. M.). the recoveries and the motive. The trial Court believed the prosecution evidence in toto and convicted and sentenced the appellants as mentioned above.

6. It is denied that the occurrence in this case took place in the court yard of the house of Khan Zaman, father of Mst. Nekbakht Bibi deceased, Ayub Khan and Mst. Zainab Bibi P. W. where they were sleeping on their respective cots during the night of 10th and 11th of September 1973: Blood‑stained earth was collected from the said courtyard. One empty cartridge (Exh. P. 1) was also recovered by the Investigating Officer from the same courtyard. Thus, it stands proved beyond any shadow of doubt that Mst. Nekbakht Bibi was fatally injured in front of the house of her father during that night of 10th and 11th of September, 1973. In fact, there is not even a suggestion by the defence that the place of occurrence possibly was or could be any other place. Once the venue of occurrence is estab lished as the courtyard of the house of Khan Zaman and the occurrence took place after midnight, the witnesses of the occurrence could bit: tile in habitants of that house. According to the prosecution, Mst. Nekbakht Bibi deceased along with her father Khan Zaman, brother Ayub Khan and sister Mst. Zainab Bibi was sleeping in front of that house during the fateful night. Rangin Khan appellant pressed the thumb of the foot of the deceased and asked her to elope with him. On her refusal to do so, he caught her by the arm in order to take her away by force. She raised alarm which awakened the other members of the family sleeping in the same courtyard. In these circumstances, Ayub Khan and Mst. Zainab Bibi P. Ws. would he the most natural witnesses who would see the occurrence. No doubt, Ayub Khan is the brother, while Mst. Zainab Bibi is the sister of Mst. Nekbakht deceased, yet the mere relationship in such a situation is not sufficient to discard their testimony. At that late hour of the night in the courtyard of Khan Zaman, nobody else could hear the alarm of the deceased and reach the place of occurrence so soon and then see the assailant except those who were sleeping by the side of the deceased in the same courtyard. Keeping in view the venue and time of occurrence we are convinced that Ayub Khan and Mst. Zainab Bibi P. Ws. would be the most natural witnesses to get up from their beds and see the occurrence. The defence has not been able to point out any enmity or motive against them to falsely implicate the appel lants. The defence suggestion that in 1939, grandfather of Rangin Khan appellant appeared as a witness against a relative of Khan Zaman (father of the deceased) and for that reason the appellants have been falsely implicated in the instant case, is highly improbable and unbelievable. It is nobody's case that from 1939 till 1973 the appellants did not got any appropriate opportunity during this long period to take revenge. Moreover, in this situation, the grievance could be on the side of the complainant party against whom the grandfather of the appellants had appeared as a witness. Another circumstances which remains unexplained is that why Mst. Nekbakht Bibi was made target of this when her father Khan Zaman was available and was sleeping on the next cot. After careful scrutiny of the relevant material available on the record and the circumstances of the case, we are clearly of the view that Ayub Khan and Mst. Zainab Bibi P. Ws had no enmity or motive to falsely implicate the appellants in this case. The mere relation ship of these witnesses with the deceased in the circumstances of the case, is rot sufficient to discard their testimony. After going through their state ments we do not entertain the slightest doubt in our mind that Ayub Khan and Mst. Zainab Bibi P. Ws. were both present on the spot at the relevant time and had witnessed the occurrence. They have been rightly believed by the trial Court and we also endorse the same view. The conviction of the appellants can be maintained on their testimony alone.

7. Although we feel that no corroboration to support these two eye witnesses is necessary. yet such corroboration is also available. As mentioned above, Mst. Nekbakht Bibi was immediately taken to the Police Post, Makarwal, where at 6‑30 a.m. her statement (Exh. P. C) was recorded by A. S. I. Muhammad Rafiq P. W. who sent the same to the Police Station where formal F. I. R. was registered. After her death, this statement (Exh. P. C,) became her dying declaration. In this statement she has fully supported the prosecution and has involved the present appellants. This dying declaration serves as an independent corroborative piece of evidence. Another corroborative piece of evidence which is available on the record is the recovery of empty (Exh. P.1.) made from the place of occurrence on 11-9-1973 and the subsequent recovery of unlicensed gun (Exh. P.2.) at the instance of Rangin Khan appellant. Both were sent to the Forensic Science Laboratory Lahore and the report is positive. No doubt the sealed parcels of the empty and the gun were sent together to the laboratory yet that circumstance it sell is not sufficient to make the recovery of these articles doubtful. On his arrival on the spot the Investigating Officer recovered one empty cartridge (Exh. P.1.) and took into possession and sealed it into a parcel vide memo. Exh. P.B. this memo was attested by Bahawal khan (Exh. P.W.7.) in addition to the Investigating officer. Bahawal Khan is related to the deceased as her Nikah was performed with his grandson Hakam Khan. He also lives in another village at a distance of about three and a half miles from the place of occurrence. However he must have reached the spot immediately after the occurrence in order to enquire about the condition of the deceased. His mere relationship with the deceased is not sufficient to discard his testimony as the defence has not been able to point out any enmity or motive against the appellant. He has been rightly believed by the trial Court. The appellants were produced before the Investigating Officer on 14-9-73 by their relatives. He arrested them. Ranging Khan appellant got recovered an unlicensed gun (Exh. P.2.) and two cartridges (Exh. P.3 1/2) from his residential Kotha and the same were taken into possession and sealed into a parcel vide memo. Exh. P.E. which is attested by Noor Khan (Exh. P.8.) and the Investigating Officer. This witness also has got no enmity or motive against the appellants. This parcel along with the earlier one was received in the office of the Forensic Science Laboratory, Lahore, on 19-96-1973 Sh. Abdul Rashid, Firearm Expert of the said Laboratory, examined the empty and the gun and gave the opinion that the alleged empty (Exh. P.1.) was fired from the gun (Exh. P.2.) No doubt the Investigating Officer should have sent the parcels of the empty and the gun separately to the Laboratory yet after going through the recovery memos. And the statements of the recovery witnesses, we feel that these recoveries have been rightly believed by the trial Court. If there was any allegation against the Investigation Officer that the tampered with these parcels and after the recovery of the gun fired a cartridge from it and then exchanged it with empty (Exh. P.1.) recovered earlier then the proper course for the defence was to put this suggestion to the Investigating Officer in cross-examination. Omission to do so is clear indication that the defence has offered no explanation why the Investigating Officer was not cross-examined about it. Recovery of the empty (Exh. P.1.) from the spot immediately after the occurrence and the subsequently recovery of gun (Exh. P.2.) at the instance of Rangin Khan appellant coupled with the Expert's positive report also serves independent corroboration.

8. Another corroborative piece of evidence available to the prosecution is the motive. Mst. Netkbakht Bibi deceased herself in the F. I. R. has given the motive. According to her, Rangin Khan appellant had several times asked her to elope with him and then to marry him. About one year prior to the occurrence her Nikah was performed with one Hakam Khan and Rukhsani was going to take place when this occurrence took place. Rangin Khan appellant had come to the house of Khan Zaman during the night in order to abduct her, but for any reason she was not ready to go with him. The defence argument is that Rangin Khan appellant being already married person having children, there was no occasion for him to abduct the deceased and then to marry her, especially when her Nikah had already been perform ed with another person. No doubt, a sensible man in such a situation would not abduct another woman. yet there are numerous instances where married men have abducted and married women. We are impressed by the fact that this motive is given by the deceased herself in the earliest document (F. I. R.) prepared in this case. The narration of the story by the deceased also supports the motive, because Rangin Khan appellant first must have pressed the thumb of her foot and then asked her to go with him. On her refusal he may have caught her by the arm to take her by force. All these facts lend support to the motive alleged by the prosecution against him. Thus, the motive stands amply proved on the record and this also corroborates the eve‑witnesses.

9. The prosecution has also tried to rely upon the second dying declaration of the deceased recorded by Dr. Inamul Haq Khan (Exh. P. M.). We are not inclined to rely upon this dying declaration. In view of her earlier statement recorded by the Investigating Officer which is more detailed, there was no need of the second dying declaration. If at all there was any necessity, then it could have been recorded by some Magistrate This dying declaration is alleged to have been attested by the Naib Tehsildar. it is not understandable that if the Naib Tehsildar was available, why the dying declaration was not recorded by him. Further, we find that the Investigating Officer was not informed by the doctor that this dying declara tion was recorded by him ; nor its copy was sent to him. He did not mention this dying declaration even in his reports under section 173, Cr, P. C. This document is also not mentioned by him in the list of documents attached with the challan. The doctor himself admitted in cross‑examina tion that the Naib Tehsildar reached the hospital when he had already completed the statement. He has further admitted that he had not written to the police to arrange for recording the dying declaration. In these circumstances we feel that it is not safe to rely upon this dying declaration.

10. The learned defence counsel has not seriously challenged the ocular account. However, his main argument is that there is conflict between the medical evidence and the ocular evidence. According to him all the injuries, oil the person of the deceased could not be caused by one shot. We have ourselves examined the injuries and have gone through the statement of the doctor who performed the post‑mortem examination. The doctor has stated as tinder :‑ "All the injuries could be the result of the one shot; if the deceased had taken a turn towards the assailant when the shat was tired. It is incorrect that the injuries were the result of more than one shot.," Apart from the above categorical statement of the doctor we have to keep in view the circumstances of the core. The occurrence took place during the night. Rangin Khan appellant lust pressed the thumb of the foot of the deceased. When she got up, he asked her to elope with him and the marry him. On her refusal he caught her arm in order to forcibly take her away. It was at this stage that she raised alarm which awakened the P. Ws. When appellant had caught her arm and wanted to take her away, she released herself and tried to run towards the korha when the appellant fired at her. In such a situation and at that hour of the night, the witnesses who had just woken up from their sleep could not be so accurate. The possibility that while trying to run away the deceased had taken a turn towards the assailant also could not be excluded. She perhaps could not except that she would be fired at immediately. Keeping in view the circumstances of the case, we are inclined tot agree with the opinion of the doctor that the injuries on the person of Mst. Nekhakht Bibi deceased could be the result of one shot if she had taken a turn towards the assailant when she was fired at.

11. As mentioned above, Rangin Khan appellant in his statement under section 342, Cr. P. C. has stated that Mst. Nekbakht Bibi was a woman of loose character and she was injured in the house by her own kith and kin and that the appellants were falsely involved. We have given our anxious thought to this defence plea, but find no force whatever in it. There is nothing on the record even to suggest that the deceased was of loose character. If she was injured by her own relations due to, her bad character, then she should have been killed on the spot and should not have been taken to the police station to give her statement. Keeping in view the social conditions of our society, if her father or brother or some other near relation wanted to kill her due to her bad character, then she should have been killed on tile spot and they could not be expected to keep her alive and then take her try the police station and thereby create evidence against them. There was nothing to stop them from Killing her on the spot. Moreover, if the deceased was really injured by one of her relations, then she could not have any sympathy with her assailant and, therefore, could not omit to mention his name in her statement. She had ample opportunity to disclose the name of her assailant to the police or to the doctor or someone else who carne in touch with her during this period before her death. We are Cleary of the view that this is a frivolous and false charge against the deceased. Accordingly, we feel no hesitation to reject this defence suggestion.

12. After hearing the counsel for the parties at considerable length arid going through the entire material available on the record, we have; reached the conclusion that the appellants were rightly convicted by they trial Court. We also maintain their convictions. We find no mitigating circumstances to justify lesser penalty for Rangin Khan appellant. Accord ingly, while maintaining his convictions and sentences we confirm the sentence of death awarded to him by the trial Court. We also maintain the sentence of fine imposed upon Rangin Khan appellant by the trial Court Zarmir Khan appellant has been convicted only under section 366 read with section 511, P. P. C. No overt act is attributed to him. It is only his presence on the spot which has been established by the prosecution. The sentence awarded to him is, therefore, rather excessive. We feel that the sentence already undergone by him is sufficient to meet the ends of justice. Accordingly, while maintaining his conviction under section 366 read with section 511, P. P. C., we reduce his sentence to the period already undergone by him. He shall be released forthwith if not requires in connection with any other case.

13. We have already believed the recovery of gun (Exh. P. 2) made at the instance of Rangin Khan appellant from his house. Noor Zaman P. W. in addition to the Investigating Officer, had supported this recovery. The appellant had no licence for this gun. The defence has not been able to point out any material on the record to show that the recovery of this gun was in any manner not proved or even doubtful. The prosecution has proved the recovery of this unlicensed gun from this appellant. Accordingly we maintain the conviction and sentence of Rangin Khan appellant under section 13 of the Arms Ordinance. If the sentence of death of this appel lant is not executed for any reason, then the sentence under the Arms Ordinance, 1965 as well as the sentence under section 366 read with section 511, P. P. C. shall run concurrently.

14. The result is that Criminal Appeal No. 132 of 1975 is disposed the above terms and Criminal Appeal No. 133 of 1972 is dismissed. Appeal dismissed.